5.8 Pillar 3: access to remedy
5.8.2 Operational principles: state judicial mechanisms [pages 36-38]
Guiding Principle 26
The UNGP describe practical and procedural obstacles as court costs, lawyers’ fees, the lack of opportunity for representative proceedings, or a lack of resources, specialist knowledge and support on the part of public prosecutors. These barriers can make it difficult for those affected by human rights abuses to seek remedy via the channels provided for in law. In international cases additional issues concerning jurisdiction and applicable law may arise.
The Federal Council recognises the importance of effective domestic judicial mechanisms to punish offenders and grant remedy to victims of human rights abuses connected with business enterprises. The extra-territorial dimension of any judicial mechanisms must be examined here. The Federal Council therefore supports efforts to achieve a better understanding of the relevant frameworks in different countries, and encourages international processes. Under certain circumstances, it is possible under Swiss law for individuals who believe that their rights have been violated by Swiss companies to bring an action or to appeal before Swiss courts. The competence of these courts to hear such cases, as well as the applicable law, must be assessed individually with reference to the applicable legal basis.
Judicial competence must be reviewed first in international cases. Here, treaty law must be considered in addition to national law. The rules of jurisdiction will determine whether or not an action can actually be brought before a Swiss court. The question of what law should apply to the action arises only in the second phase. This law will determine whether or not a business enterprise bears any liability and, if so, according to what rules. Both questions must be examined independently.
For tort cases brought under private law in Switzerland against Swiss-based companies, the place of jurisdiction must always be stated as Switzerland (Art. 2 International Private Law Act (IPLA)101 and Art. 2 of the Lugano Convention102). Action may even be brought in Switzerland against business enterprises based abroad, if the damage or loss (from a violation of human rights, for example) is realised or has had a direct impact in Switzerland, or was caused from a branch in Switzerland (Art. 129 IPLA, Art. 5 nos. 3 and 5 of the Lugano Convention). Art. 3 IPLA also provides for emergency Swiss jurisdiction if proceedings abroad are impossible or unreasonable. The condition here is that the case being brought has a sufficient association with Switzerland.
The success of any action, and especially the question whether or not a tort can be ascribed to a particular party, depends on the applicable law. In Swiss courts, this is determined for torts by Article 132 et seqq. IPLA. However, by virtue of the provisions on public policy (ordre public, Art. 17 and 18 IPLA), fundamental tenets of Swiss law – specifically human rights – apply irrespective of the law applicable to a given case.
Under certain circumstances, a business enterprise may face criminal prosecution under the General Provisions of the Swiss Criminal Code, in addition to the natural persons who have committed the punishable act, and who are punishable first and foremost.
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 26:
PI45 Evaluation of access to Swiss courts and of the removal of practical and procedural obstacles
In 2014, the federal government commissioned a study from the SCHR on jurisdiction in cases of infringements of human rights by transnational business enterprises. It is intended in part to set out the legal options, and any barriers to access to Swiss courts. The analysis concentrates on the ways in which those affected by human rights abuses committed by Swiss companies abroad can claim effective remedy before Swiss courts. The study will also create a basis on which to evaluate Switzerland in comparison with the international community, and to identify the options for any future measures.
In fulfilment of postulate 14.3663 Zugang zur Wiedergutmachung [‘Access to remedy’], submitted by the Council of States Foreign Affairs Committee, the Federal Council is also analysing which judicial and non-judicial measures are being put in place by other States to permit persons whose human rights have been violated by a company in a host state to seek remediation in that company’s home State. The SCHR and the Swiss Institute of Comparative Law are drawing up the study jointly. Work is scheduled to be completed by the end of 2016. Drawing on the study, by 2019 the Federal Council will then examine the implementation of possible measures in the Swiss context, with a view to the revision of the National Action Plan on Business and Human Rights.
As part of work in fulfilment of motion 14.4008 Anpassung der Zivilprozessordnung [‘Amendment of the Civil Procedure Code’] and postulate 14.3804 Zivilprozessordnung. Erste Erfahrungen und Verbesserungen [‘Civil Procedure Code. Initial experience and improvements’], the Federal Council is currently examining the law of civil procedure that has been in effect since 2011 in order to identify shortcomings and weaknesses. It will submit any proposed revisions to Parliament by the end of 2018 at the latest. The situation with regard to legal costs, in particular, is to be investigated.
Furthermore, in fulfilment of motion 13.3931 Förderung und Ausbau der Instrumente der kollektiven Rechtsdurchsetzung [‘Furthering and extending class action instruments’], the Federal Council is also currently drawing up draft bills which will make it easier for a number of injured parties in low-value and mass claims to bring a class action. Individual aspects of the existing instruments are to be improved, and new instruments introduced.
PI46 Accountability and Remedy Project by the Office of the UN High Commissioner for Human Rights
Switzerland works within international bodies to ensure that court jurisdiction is coordinated, and access to remedy improved. It provides both content and financial support for the work being undertaken by the office of the UN High Commissioner for Human Rights in this area. The corresponding report to the UN Human Rights Council was completed in May 2016 in collaboration with stakeholder groups. It contains recommendations for member states. The next step for Switzerland will be to determine which OHCHR recommendations it is able to implement to improve access to remediation.
PI47 Rule of law in host states
Switzerland engages in political dialogue (cf. PI 34) and international development cooperation to support a variety of partner States which exhibit deficits in governance. This support aids them in establishing and strengthening the rule of law, so they are better able to fulfil their duty to protect. These programmes include public-private partnership projects, and will be continued on their existing scale.